Physically observable EG: Sex with HIV infected person, not physically observable. Prominent and conspicuous EG: Maybe submerged Rootes v Shelton case. Wrongs Act , s 53 (5) A risk from a thing (including a living thing) is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk EG: Risk of falling from a chairlift, risk is due to failure by operator to maintain chairlift. That sort of risk is not obvious, unless there is an obvious risk that the operator would not maintain the chairlift properly. 38

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Inherent Risks An inherent risk may or may not be obvious. Wrongs Act , s 55 – Factual causation cannot be established (or hard to) D is not liable for harm suffered as a result of the materialisation of an inherent risk An inherent risk = a risk that cannot be avoided by the exercise of reasonable care s 55 doesn’t exclude liability in connection with a duty to warn of a risk WA S55(3) – Exception to s55 This section does not operate to exclude liability in connection with a duty to warn of risk. D may have a duty to warn P of a risk, they can be liable if they fail to warn. EG: Rootes v Shelton – Even if D was driving the boat negligently, any negligent will not be regarded as a cause, because it is regarded as a risk that the D could not avoid. The D may have a duty to warn the P. One could be liable to warn of the risk. 39

(c) Illegality – Complete Defense (prevents the D from owing a duty of care) Wrongs Act 1958 (Vic) ss 14G Not automatically a defence, only sometimes a defence, in those cases where it is a defence it operates to prevent a duty of care arising. Burden of proof is on D to show that illegality negates the duty. Two types of cases: 1. Cases where P’s illegal conduct is independent of D’s negligence; and 2. Cases where P and D were jointly engaged in an illegal activity Case 1: Independent illegal conduct Is not necessarily a defence: Henwood Reason : Not all illegality is serious and therefore should not prevent the P from claiming negligence. Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 (CB 541 and 542) Facts: P’s illegality consisted of putting head outside the tram. While leaning out, P hit his head on a pole and died. His parents sued the tram operator for negligence. The offered a number of reasons one of which is that the pole was too close to the tram. The D argued that the P’s illegal conduct was the cause. The court held that DoC was owed, the fact that the passenger broke the by law does not prevent a DoC from arising. Test Proposed: Where P acts independently illegally and there is a breach of statute or regulation. Where P breached a statute or regulation, the question is whether that provision was intended to prevent

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